ABUSE OF AUTHORITY BY POLICE

Police officers in the United States are asked by the general public to intervene in multiple types of critical incidents. Whether it is responding to a bank robbery or trying to calm a complainant in a domestic disturbance call, police officers are occupationally mandated to assume to variable degrees the roles of law enforcement agents, psychologists, legal advisers, and even parents. The reason for this omnibus social service/public safety role likely resides in Egon Bittner’s (1970) now-classic explanation of why we have police in a democratic society: because ”something-ought-not-to-be-happening-about-which-something-ought-to-be-done-now!” To facilitate the rapid response to diverse exigent situations, the American public has voluntarily given the police the general right to use coercive force—something that no other members of the public possess (Bittner 1970; Klockars 1985). While many (perhaps most) officers exercise their coercive authority judiciously and with appropriate restraint, others abuse their authority in violation of their office of public trust. This chapter identifies a framework for understanding police abuse of authority, describing the most common types of abuse, as well as several conventional mechanisms of police accountability.

The Nature of Police Abuse of Authority

David Carter (1985, 322) offers perhaps the most comprehensive definition of police abuse of authority, arguing that it is best described as “any action by a police officer without regard to motive, intent, or malice that tends to injure, insult, tread on human dignity, manifest feelings of inferiority, and/or violate an inherent legal right of a member of the . . .” public. Carter’s definition considers three broad areas of police abuse including physical, psychological, and legal domains.

Physical Abuse

Since the early 1990s, police violence has become perhaps the most widely discussed and debated form of abuse committed by police. While extralegal use of force is often considered a single dimension of police abuse of authority, Fyfe (1986) made an important distinction between extra-legal (i.e., physical abuse) and unnecessary (i.e., professional incompetence) police violence. (Like Binder and Scharf [1980], Fyfe [1986] defined unnecessary force as force that was legitimately used at the time of application, but which could have been avoided had officers used tactics and strategies to keep the potentially violent encounter from becoming violent. In this regard, unnecessary force is regarded as professional incompetence as opposed to abuse of authority.) For present purposes, Fyfe argued that extralegal force represents intentional physical abuse properly described as police brutality committed with a certain degree of malice toward the victim—who is typically “guilty” of committing an affront to police authority (see also Van Maanen 1978). In this context, brutality is analogous to punishment and is generally justified as such among officers who engage in putatively violent behavior. For example, Worden (1996) found that suspects who attempt to evade police when commanded to yield generally place themselves at high risk for violence when caught by pursing officers.

Two types of brutality have been historically associated with American policing, occurring at two distinct points of contact between police and citizens. External brutality is any form of excessive force—or “street justice” (Klockars 1985; Sykes 1986) that occurs within a public setting before any formal disposition (e.g., arrest) is made. Custodial coercion is brutality that occurs after an arrest has been made, generally during the interrogation process. In early American policing (i.e., prior to 1900), because officers typically minimized the use of arrest largely due to the limited availability of efficient modes of transporting suspects to jail, external brutality was a normative “tool” of neighborhood-level peacekeeping (Haller 1976). As the police, however, evolved into a more formalized institution of social control and began relying on “scientific” detection methods, the arrest disposition became a more common component of the policing process. With more suspects being taken into physical custody, it was natural that the police would question suspects regarding their alleged crimes for the purposes of obtaining confessions. As custodial interrogations became a more common feature of the policing paradigm, so too did custodial coercion—particularly in the years through the 1930s when the third degree was widely used (Skolnick and Fyfe 1993). The Wickersham Commission’s 1931 Report on Police argued that the use of the “third degree” during interrogation of suspects was widespread (if not universal) throughout police departments in the United States. The authors of the police volume of the report referred to the third degree as “torturous,” and publicly called for the police to use less physically abusive tactics during interrogations (see also Chevingy 1995).

As America entered the decade of the 1960s, crime rates were increasing, riots were taking place in major and minor cities across the country, and the police appeared largely ill prepared to respond to these new urban ”threats” (LaFree 1998). President Lyndon Johnson appointed a special commission to investigate the current state of the police, and the National Advisory Commission on Civil Disorders, known as the Kerner Commission, found several severe problems with American police practices. Most notable, brutality was reportedly standard practice in policing; and it was the aggressive use of police coercion that triggered many of the urban riots that would occur during the decade (Uchida 1997).

The legacy of policing from the 1960s is that social scientists gained interest in policing as an academic pursuit, applying their expertise to a relatively unstudied field (see Skolnick 1966; Wilson 1968; Westely 1970). As a result, many traditional methods of training, deployment, and officer selection were subsequently questioned (e.g., Kelling et al. 1974), and as time has progressed through the 1990s, many police departments have tried to stay current with research and the application of the latest methods and ideas. Brutality still has been a problem in the past few decades, but it has been slight in comparison to the institutionalized brutality found in the 1960s. Indeed, when the Knapp Commission (1972) published its report on allegations of police misconduct in the New York City Police Department, the focus on police deviance largely shifted from brutality to profit-motivated corruption. Interest in police brutality gained renewal with the 1991 beating of motorist Rodney King by officers of the Los Angeles Police Department, initiating a wave of scholarly attention as to the causes and implications of police violence, as well as its control (see Skolnick and Fyfe 1993; Geller and Toch 1996).

Psychological Abuse

Carter (1985) notes that psychological abuse by police historically has been rooted primarily in police interview practices, largely developing in response to the prohibition of the use of physically compelling tactics during interrogations. As del Carmen (1991) noted, the Supreme Court’s decision in Brown v. Mississippi (1936), which banned the police use of physical coercion during interrogations, led officers to begin a reliance on psychological coercion as a means of obtaining confessions. Though the Court officially ended the use of”intense psychological” coercion of suspects in police custody (see Spano v. New York, 1959), it is likely that such abuse endures (see Chevingy 1995; del Carmen 1991)—particularly because the police continue to rely on the confession as their primary form of evidence during custodial interrogations (Skolnick and Fyfe 1993).

Legal Abuse

Generally, legal abuse relates to police officers violating criminal statutes, or the rights of citizens (typically, accused offenders) in order to achieve some organizational goal (Kappeler et al. 1994). This is often expressed in the form of committing perjury on the witness stand to ensure that an accused offender is adjudicated guilty; it may also involve officers setting up illegal wiretaps in order to surreptitiously gather incriminating information on police suspects. Certainly, these examples are not exhaustive.

It is important to note that although the framework discussed here provides a context for conceptualizing perhaps the most egregious types of police abuse, it ignores what is likely the most com-mon—and most difficult to redress—type of abuse: verbal. Although Carter’s (1985) definition of police abuse appears to include (or at least make room for) verbal mistreatment by police officers, few if any

scholars (and practitioners) have addressed verbal abuse as a form of police malpractice. This omission is likely due to the difficulty of defining and measuring the prevalence of verbal abuse. The importance of considering verbal abuse, however, is difficult to overstate because cumulative verbal abuse may be a primary cause of decreased police legitimacy and increased noncompliance among citizens—particu-larly in communities that experience social and political marginalization.

Legitimizing Police Abuse of Authority

As noted, the core of the police role resides in the general right to use coercive force, and no other member or group in American society enjoys such a legal privilege. It is therefore paradoxical that the same legal authority allowing police to engage in crowd control, take physical custody of citizens, and search for evidence in private residences also provides a structural framework that may facilitate police abuse of authority. For several reasons the criminal law has been implicated as a mechanism that gives police officers a unique opportunity to engage in occupational deviance. For example, Brodeur (1981) noted that many actions routinely practiced by police officers, which are part of their legal mandate, would be considered violations of criminal law if they were practiced by private citizens. Moreover, for each of these “practices” of legal policing, there exists an illegal analogue that moves the activity into a category of police deviance (Brodeur 1981). These activities fall into both personal and property violations and are described next.

In terms of personal actions, Brodeur (1981) indicated that citizens who kill would be generally held to answer for homicide, but that police officers who kill are often engaging in the legitimate police practice of “deadly force.” The analogue to deadly force in the police deviance arena is police executions, killings not authorized by law. Next, Brodeur suggested that if private citizens detain other citizens, they may be guilty of kidnapping; but that when police officers engage in liberty deprivation, they are generally legally detaining or arresting criminal suspects. Such police detentions may become abusive if officers make false arrests. Some forms of personal invasion are legal for police, such as when they conduct strip and body cavity searches. This behavior becomes deviant when these searches escalate to sexual exploitation. Police officers may use force to seize property. In most cases, citizens who engage in this practice would be guilty of robbery. When police officers abuse their authority to seize property, it is generally described as extortion or bribe taking. Finally, what may be considered assault and battery between private citizens is often reasonable force when practiced by police officers. Reasonable force becomes deviant when officers engage in police brutality.

In terms of property-related activity, Brodeur (1981) wrote that police searches and seizures often involve conduct that if committed by private citizens would be considered theft and/or burglary. These behaviors become deviant among police officers when they steal and/or convert the seized property to money or money’s worth. Finally, police officers are allowed to seize and possess illegal drugs for arrest and investigative purposes. Private citizens who engage in such activity would likely be guilty of violating criminal drug statues (Brodeur 1981).

Brodeur’s (1981) observations are important because they show not only that police are given special authority to engage in what would be normally considered rule-breaking behavior among private citizens, but that this special authority also provides police officers with unique opportunities to engage in abusive behavior. Indeed, several researchers have noted that the structure of policing in America creates virtually unlimited opportunities for police deviance and abuse of authority (Barker 1990; Bryant 1974). Ericson (1981) wrote, ”substantive laws are written broadly enough, and with sufficient ambiguity, that they can be applied across a range of circumstances” (p. 91). He goes on to argue that criminal laws provide police with such vast discretionary power that officers in the field may rely on a number of possible charges for making arrests and taking suspects into custody. Ericson (1981, 91) noted that public order offenses and obstructing the police are two widely relied on charges that police officers use as a pretext for accomplishing individual or organizational goals.

Redressing Police Abuse of Authority

The history of police abuse of authority in the United States has foreshadowed the development of mechanisms designed to hold the police accountable when officers have grossly violated the dignity of members of the public. Macro-level mechanisms, typically in the form of Supreme Court decisions, have been used to articulate the outer boundaries of police authority in both custodial and public settings. Micro-level mechanisms of accountability have been developed to respond precisely to individual officers accused of committing acts of brutality or excessive force. For present purposes, the term accountability is used to describe the mechanisms available to private citizens and the government to redress police malpractice and abuse of authority.

Case Law: The Macro-Level Mechanism

Regulating the methods by which police obtain information from suspects during custodial interrogations has been legally complex because the Supreme Court has historically appealed to the Due Process Clause of the Fourteenth Amendment, the Self Incrimination Clause of the Fifth Amendment, and the Right to Counsel Clause of the Sixth Amendment. As previously noted, the increased reliance on confessions became associated with custodial brutality through the Prohibition era and into the 1930s. In 1936, however, the Supreme Court ruled in Brown v. Mississippi that the police use of physical coercion to obtain confessions from suspects was unconstitutional because such confessions could be regarded only as ”involuntary.” Some researchers have argued that Brown v. Mississippi led the police to switch from physically coercive methods to psychologically abusive methods in the quest to obtain confessions (see Walker and del Carmen 1997). With its decision in the case Spano v. New York (1959), however, the Supreme Court prohibited psychologically abusive tactics during custodial interrogations.

To date it has been impossible to determine the extent to which physical and extreme psychological coercion have been eliminated during custodial interrogations given that police still rely heavily on the use of confessions to prove the guilt of criminal suspects. The increased use of audio and video recording technologies during interrogations may do much to ensure both legal and ethical methods of interrogation, but only to the extent that such devices are employed systematically.

In addition to attempting to regulate police coercion in custodial contexts, the Court has also addressed police coercion (i.e., violence) in general police-citizen encounters. For example, the landmark decision in Tennessee v. Garner (1985) made impermissible the common law police practice of using deadly force against nondangerous fleeing felons. Specifically, the Court ruled that officers were allowed to use deadly force only to prevent the escape of suspects believed to pose a ”significant threat of death or serious physical injury to the officer or others” if not immediately apprehended. The Court concluded that deadly force was tantamount to a seizure of the person and therefore subject to regulation under the reasonableness requirement of the Fourth Amendment to the U.S. Constitution. Interestingly, although Garner automatically invalidated laws in states that had legalized the “feeling felon” rule (del Carmen and Walker 1997), the decision may have had only limited impact on street-level police practices, because many metropolitan police departments by 1985 had already adopted highly restrictive deadly force policies in response to the threat of civil liability (Fyfe 1986).

In a case that may have had a more direct impact on police accountability in the United States, the Court in Graham v. Connor (1989) ruled that police officers may be held liable under the Constitution for using excessive force. Under Graham, the test for liability is “objective reasonableness” as opposed to a more rigorous “substantive due process” standard because, as the Court reasoned, excessive force should be judged “from the perspective of a reasonable officer at the scene rather than with the 20/20 vision of hindsight.” With the objective reasonableness standard (also regulated by the Fourth Amendment), the Court recognized that police officers often must make quick decisions during critical incidents without the benefit of time to fully reflect on the potential implications of their actions.

Micro-Level Mechanisms

As Klockars (1996) notes, most states have civil rights statutes that make it illegal for police officers to commit acts of brutality under color of authority. The most widely known statutes by the public, however, are the federal civil rights laws incorporated into the United States Code, which include both criminal (Title 18 §242 USC) and civil (Title 42 §1983 USC) versions. These statutes, which are almost identical in phrasing, make it a federal crime and tort, respectively, for police officers to violate citizens’ civil rights under color of authority. Because of the lower evidentiary threshold required in civil court (a “preponderance of evidence” versus the “beyond a reasonable doubt” required in criminal court), officers accused of brutality or abuse of authority are often sued rather than prosecuted. In many cases, they are both sued and prosecuted in federal court.

Administrative mechanisms usually include restrictive policies and procedures, as well as internal affairs investigative units. Many of America’s large police departments—such as those in New York City and Chicago—have developed highly formalized disciplinary review processes analogous to courts-martial of military justice. In such systems, officers are processed through administrative trials during which they may use counsel, where charge and plea negotiations occur, and where administrative “due process” must be maintained.

Emerging Issues Regarding Police Abuse of Authority

Since the United States “declared” war on crime in the 1960s—which escalated into a war on drugs in the 1980s—local police have increasingly appealed to military symbolism, tactics, and strategies to fulfill their enforcement mandate. As both Walker (2001) and Kennedy (2003) have noted, the consequences of the war on drugs paradigm have been felt primarily by residents of socially dislocated urban ghettos as young black males have become the archetype of the urban criminal offender (see also Wilson 1987; Massey and Denton 1993; Skolnick and Fyfe 1993; Anderson 1999). Since September 11, 2001, the war on terrorism has given renewed legitimacy to aggressive police tactics that bring with them the increased potential for abuse of authority. This may be especially true as the fear of terrorism outweighs the American public’s concerns for civil liberties and due process protections. The post-9/11 era presents special challenges to policing and public policy because every increase in police authority (such as in the areas of search and seizure, internal surveillance, and enforcement of federal statutes) brings with it new ways for motivated officers and departments to abuse their offices of public trust.